Citation Nr: 1807648 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-15 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for skin disability, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In November 2015, the Board remanded the claim for additional development. FINDING OF FACT Squamous cell cancer and actinic keratosis are not skin disorders presumptively associated with herbicide exposure; and a chronic skin disorder attributable to service is not shown. CONCLUSION OF LAW The criteria for service connection for skin disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a skin disability. In support of his claim, the Veteran submitted a medical opinion dated in December 2015, which indicated that he had squamous cell carcinoma and actinic keratosis related to a "sustained significant exposure to sun and Agent Orange" while serving in Vietnam. See Medical Treatment Record - Government Facility (December 2015). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection based on exposure to designated herbicide agents will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. The diseases deemed associated with herbicide exposure for purposes of the presumption are set out at 38 C.F.R. § 3.309(e). 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309. Squamous cell cancer and actinic keratosis are not diseases identified as presumptively associated with herbicide exposure under the relevant law. 38 C.F.R. § 3.309(e). However, even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Facts & Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for chronic skin disability. A chronic skin disability is not shown in service or within the initial post separation year. Squamous cell cancer and actinic keratosis, shown decades after service separation, are not skin disorders presumptively associated with herbicide exposure and are not otherwise related to service or linked to in-service herbicide or sun exposure. STR reflects no complaints or findings for abnormal skin pathology. Report of separation examination dated in May 1970 reflects normal clinical evaluation of the skin. More than 30 years after service separation, squamous cell carcinoma and actinic keratosis are first documented in May 2002. See Medical Treatment Record - Non-Government Facility (November 2012). In 2012, VA received a claim from the Veteran based on skin disability-specifically, skin cancer presumptively associated with Agent Orange. See VA Form 21-4138 (October 2012). Report of VA examination dated in June 2013 reflects a history of skin disorders diagnosed as actinic keratosis in 2003 and squamous cell carcinoma in 2003. The Veteran reported that he served in Vietnam, had Agent Orange exposure, and post service developed skin disorders. The examiner opined that the skin disorders were more likely than not related to "solar damage to the skin." The examiner referenced medical data from "Up to Date." In an April 2016 addendum, the examiner stated that the Veteran's skin disorders were less likely than not related to service and explained that: . . .records suggest he [the Veteran] was born and raised in Southern California, an area with significant sun exposure. He was stationed in Republic of Vietnam for 13 months. He was diagnosed with squamous cell carcinoma arising in an actinic keratosis in 2002, approximately 32 years after his separation from active service. Actinic keratoses and squamous cell carcinoma occur as a consequence of cumulative ultraviolet sun exposure; both conditions are not uncommon in people who have lived in Southern California for most of [their] life. The above medical evidence weighs against the claim as it does not show that the Veteran's skin disorders are related to service including sun or herbicide exposure in service. The Board has considered the December 2015 favorable medical opinion. However, the Board finds that this opinion is less probative than the 2016 VA medical opinion. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Moreover, the probative value of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Here, unlike the negative VA medical opinion, the December 2015 medical opinion reflects no review of the claims file, consideration of relevant medical literature, or a rationale for the favorable opinion. Therefore, the December 2015 medical opinion has diminished probative value. The Board has considered the Veteran's statements and accepts that he is competent to report his symptoms, treatment, and onset. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to attribute his skin disorders shown more than 3 decades after service separation to his period service, including either sun or herbicide exposure. This is because he lacks the requisite medical expertise and the etiology is not susceptible to lay observation, unlike a broken leg. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion; whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case). Therefore, the Veteran's medical opinion has no probative value. In this case, the Board assigns greater probative value to the STRs, which included normal clinical findings for skin, and the VA medical opinions dated in 2013 and 2016. This medical evidence is more probative as it was prepared by skilled, neutral medical professionals after examining the Veteran. Furthermore, the 2013 and 2016 VA medical opinions taken together include a rationale for the opinion. This evidence, coupled with the many years intervening service and the first documented abnormal findings, weigh against the claim. Accordingly, because the weight of the evidence is against the claim, service connection for skin disability is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for skin disability is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs